Tolling existing roads legal or not?

Confusion persists about whether or not it is legal to convert free highway lanes into toll lanes in the state of Texas, despite Governor Rick Perry’s claim that it is illegal during the January 29 Republican gubernatorial debate. In an article in the Dallas Morning News February 1, TxDOT spokesman Chris Lippincott stated:

“‘The department has made it clear that we have no interest in tolling existing lanes,’ Texas Department of Transportation spokesman Chris Lippincott said this afternoon, when told of the Obama budget provision. ‘Whether we are prohibited from doing so in federal law is irrelevant,’ he said.

The article goes on to say…

“And it wouldn’t be easy, even if the state’s Transportation Commission didn’t have a policy in place that effectively abides by the moratorium. To turn a freeway (or even a single lane of existing roadway) into a toll road, TEXDOT would need a waiver from the Federal Highway Administration. These are granted only rarely. Then, state law requires approval from the county commissioners and then from a county’s voters.”

Not only is TxDOT planning to toll existing lanes, they’re lying about it. The feds are not only aware of the plans for US 281 in San Antonio in particular, it had already granted clearance until we sued to stop them. So rare or not, the feds granted it.

Perry’s greatest fib of the January 29 debate was his insistence that the Texas legislature passed a bill in 2005 prohibiting the conversion of free lanes to toll lanes. However, the bill, HB 2702, tells precisely how TxDOT can LEGALLY convert existing highway lanes into toll lanes through 6 exceptions, one that allows a conversion of free lanes by simply downgrading the free lanes to access roads adjacent to the tollway.

Though the language doesn’t specifically use the term “access roads” to refer to the relocating of free lanes adjacent to the tollway, TxDOT has consistently interpreted the law to mean it has the authority to downgrade freeway lanes to access roads without triggering a public vote based on HB 2702. See the two-part discussion of this law before the Sunset Commission in 2008 here and here. Part-two shows TxDOT Executive Director Amadeo Saenz stating TxDOT’s interpretation of HB 2702 allows highway lanes to be downgraded to access roads.

The bill also contains a gaping grandfather clause that exempts virtually all the toll projects currently on the table (because they were designated as toll roads in MPO plans prior to September of 2005), so no public vote would be triggered for the dozens of grandfathered toll projects.

Perry’s elitist “you can eat cake” attitude is this: if you can’t afford the toll lanes, you can sit in congestion on the stop-light ridden access roads. He thinks replacing free highway lanes with access roads is acceptable and his highway department is doing it all over Texas.

The citizens’ fight to stop the conversion of existing FREEway lanes into toll lanes on US 281 and Loop 1604 in San Antonio, 290 West in Austin, and Hwy 59 in East Texas (part of Trans Texas Corridor TTC-69 that’s still alive and well), has languished precisely because of the loopholes in HB 2702.

TURF worked 24/7 in the last legislative session to fix these loopholes. Rep. David Leibowitz of San Antonio introduced a bill to do so and got it attached to the TxDOT sunset bill (but it was stripped in the Senate).

Texans deserve protection from the DOUBLE TAXATION of converting freeways into tollways. Perry was dead wrong to imply Texans are protected in state law. They’re not, especially for the exempted Trans Texas Corridors, like TTC-69, that will ‘upgrade’ existing freeways (like Hwy 59) into tollways at the hands of foreign companies.

Except as provided by Section 228.2015, the department may not operate a nontolled state highway or a segment of a nontolled state highway as a toll project, and may not transfer a highway or segment to another entity for operation as a toll project, unless: (1) the commission by order designated the highway or segment as a toll project before the contract to construct the highway or segment was awarded; (2) the highway or segment was open to traffic as a turnpike project on or before September 1, 2005; (3) the project was designated as a toll project in a plan or program of a metropolitan planning organization on or before September 1, 2005; (4) the highway or segment is reconstructed so that the number of nontolled lanes on the highway or segment is greater than or equal to the number in existence before the reconstruction; (5) a facility is constructed adjacent to the highway or segment so that the number of nontolled lanes on the converted highway or segment and the adjacent facility together is greater than or equal to the number in existence on the converted highway or segment before the conversion; or (6) the commission converts the highway or segment to a toll facility by: (A) making the determination required by Section 228.202; (B) conducting the hearing required by Section 228.203; and (C) obtaining county and voter approval as required by Sections 228.207 and 228.208.

Sec. 228.2015. LIMITATION TRANSITION. (a) Notwithstanding

Section 228.201, the department may operate a nontolled state

highway or a segment of a nontolled state highway as a toll project

if: (1) a construction contract was awarded for the highway or segment before September 1, 2005; (2) the highway or segment had not at any time before September 1, 2005, been open to traffic; and (3) the commission designated the highway or segment as a toll project before the earlier of: (A) the date the highway or segment is opened to traffic; or (B) September 1, 2005. (b) This section expires September 1, 2006.

SECTION 2.37. Section 362.0041, Transportation Code, is

transferred to Subchapter E, Chapter 228, Transportation Code,

redesignated as Sections 228.202-228.208, and amended to read as

follows:

Sec. 228.202 [362.0041 ]. COMMISSION DETERMINATION [CONVERSION OF PROJECTS ]. The [(a) Except as provided in Subsections (d) and (g), the ] commission may by order convert a nontolled state highway or a segment of a nontolled state highway [the free state highway system ] to a toll project [facility ] if it determines that the conversion will improve overall mobility in the region or is the most feasible and economic means to accomplish necessary expansion, improvements, or extensions to that segment of the state highway system.

Sec. 228.203. PUBLIC HEARING. [(b) ] Prior to converting a state highway or a segment of a[the ] state highway [ system ] under

this subchapter [section ], the commission shall conduct a public

hearing for the purpose of receiving comments from interested

persons concerning the proposed conversion [transfer ]. Notice of

the hearing shall be published in the Texas Register, one or more

newspapers of general circulation, and a newspaper, if any,

published in the county or counties in which the involved highway is

located. Sec. 228.204. RULES. [(c) ] The commission shall adopt

rules implementing this subchapter [section ], including criteria and guidelines for the approval of a conversion of a highway. Sec. 228.205. QUEEN ISABELLA CAUSEWAY. [(d) ] The commission may not convert the Queen Isabella Causeway in Cameron

County to a toll project [facility ].

Sec. 228.206. TOLL REVENUE. [(e) Subchapter G, Chapter

361, applies to a highway converted to a toll facility under this

section. [(f) ] Toll revenue collected under this section:

(1) shall be deposited in the state highway fund;

(2) may be used by the department to finance the

improvement, extension, expansion, or operation of the converted

segment of highway and may not be collected except for those

purposes; and (3) is exempt from the application of Section 403.095,

Government Code.

Sec. 228.207. COUNTY AND VOTER APPROVAL. [(g) ] The

commission may only convert a state highway or a segment of a[the ]

state highway [ system ] under this subchapter [section ] if the

conversion is approved by : (1) the commissioners court of each county within

which the highway or segment is located ; and (2) the qualified voters who vote in an election under Section 228.208 and who reside in the limits of: (A) a county if any part of the highway or segment to be converted is located in an unincorporated area of the county; or (B) a municipality in which the highway or segment to be converted is wholly located .

Sec. 228.208. ELECTION TO APPROVE CONVERSION. (a) If

notified by the department of the proposed conversion of a highway

or segment under this subchapter, and after approval of the

conversion by the appropriate commissioners courts as required by

Section 228.207(1), the commissioners court of each county

described by Section 228.207(2)(A) or the governing body of a

municipality described by Section 228.207(2)(B), as applicable,

shall call an election for the approval or disapproval of the

conversion. (b) If a county or municipality orders an election, the

county or municipality shall publish notice of the election in a

newspaper of general circulation published in the county or

municipality at least once each week for three consecutive weeks,

with the first publication occurring at least 21 days before the

date of the election. (c) An order or resolution ordering an election and the

election notice required by Subsection (b) must show, in addition

to the requirements of the Election Code, the location of each

polling place and the hours that the polls will be open. (d) The proposition submitted in the election must distinctly state the highway or segment proposed to be converted

and the limits of that highway or segment. (e) At an election ordered under this section, the ballots shall be printed to permit voting for or against the proposition:

“The conversion of (highway) from (beginning location) to (ending

location) to a toll project.” (f) A proposed conversion is approved only if it is approved

by a majority of the votes cast. (g) A notice of the election and a certified copy of the